Calling Privilege a Right is Just Plain Wrong

Greetings and salutations, all. Christine Anne George here. Perhaps you remember me from post #5 where I wrote about the Belfast Project back in November. Well I’m back to talk about it again in light of the document from the Government Affairs Working Group (GAWG) on the subject and the latest post on SAA president Jackie Dooley’s blog, Off the Record (OtR). In the interest of full disclosure, there are a few things you should know. I believe that archivists should begin advocating for archival privilege now. I also think that SAA should file an amicus brief if the case is heard before the Supreme Court. However, my reasons for thinking this are not in line with those outlined in the OtR post.

This is a big picture issue that’s getting the narrow lens treatment from SAA’s leadership. Sure the legal battle centers on the Belfast Project interviews, but for archivists, the ultimate physical location of the interviews does not matter as much as future legal implications for archival policy. The problem is that academics, heritage groups, and lawyers have been talking about archives while archivists and the national organization that represents them remain silent. As archivists, we know about archival best practices; those outside the profession don’t. Whenever archives are mentioned, archivists should be front and center, making sure that the profession’s best interests are being served. The situation surrounding the Belfast Project is not your average archives story, but no one is going to know that if archivists don’t tell them.

Amicus briefs are filed by parties with an interest in the outcome of a case. They can be filed in support of one side or the other, but they can also be filed in support of neither side. SAA is an interested party in the Belfast Project case, even though the legal issues in the case involve the interpretation of an international treaty and not explicitly archival privilege. It is in the best interest of the archival community that, should the Supreme Court rule on the Belfast Project case, it makes a narrow ruling. In other words, that the Court acknowledges that its ruling is applicable in a very specific set of circumstances and is not all-encompassing. When a judge delivers an opinion in a case, he or she rules on a particular legal issue, and that ruling becomes law. However, judges often include their beliefs or opinions—which are called dicta—that go beyond the issues of the case. The legal issue for the Belfast Project case is the interpretation of an international treaty. However, concepts of academic freedom and archival privilege keep creeping into the case, and it is possible that the Justices may address those topics in their decision. Although dicta are not technically law, they have some weight and can be used either in support of or against a particular issue at a later date. The archival community has not made a decision about archival privilege, so it’s probably best that the highest court in the land not make a comment in its discussion of the case that archival privilege shouldn’t exist.

I would be remiss if I didn’t mention that there are several inaccuracies in both the OtR post and the GAWG’s document, some of which are:

The first time that archival privilege was invoked in the 1986 case Wilkinson v. Federal Bureau of Investigation the district judge did not explicitly state that archival privilege did not exist. The opinion stated that no one had ever attempted to invoke archival privilege before, but that, ultimately, archival privilege could not be applied in that particular instance, given the facts of the case.

The district judge in the Belfast Project made several concessions including acknowledging in his opinion that this particular instance warranted higher scrutiny, and allowing the interviews covered by the second subpoena to be reviewed in camera, or in private, so that the details of the interviewees would not be revealed.

Archival privilege is by no means a legal right. Privilege is a very fragile protection that is incredibly difficult to obtain and beyond easy to break. No individual or group has a right to privilege. In fact, if you want the protections of privilege, you have to actively invoke it. It is never assumed. It is also something that will take archivists decades to achieve, as evidenced by journalists who sought their own privilege.

Boston College has taken far more legal action than the GAWG document acknowledges. It appealed to the First Circuit—although not for the Dolours Price interview, but rather the interviews that fell under the second subpoena. Boston College also moved to vacate the district court’s decision after Delours Price’s death.

Finally, I’m concerned that we, as a profession, are only beginning to talk about archival privilege and the Belfast Project while others have been since May 2011, and we still lack any concrete plan to continue and foster discussion. How about a forum at the 2013 meeting to discuss it? Or actively soliciting opinions from the membership? The Oral History Section created a site devoted to providing information about the Belfast Project and the legal situation. This microsite is a great starting point. Discussions about archival privilege need to happen and keep happening.

As a shameless plug, if you happen to be attending the MARAC conference in Erie, PA in April, come find me. I’ll be talking about this in one of the advocacy panels.

Issues and Advocacy Roundtable

The Issues & Advocacy Roundtable tracks issues of importance to archivists and the archival community. The I&A Roundtable has a global mission and works with individuals at the local, national, and international level. The issues of importance include: tracking laws and legislation affecting archives, increasing diversity, increasing access for disabled researchers and archivists, advocacy for improving working conditions, maintaining wages and institutional budgets.

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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